Screenwriter Douglas J. Eboch (Sweet Home Alabama) discusses screenwriting, pitching, and the business of Hollywood.

Thursday, November 14, 2013

Writing Under Contract

Last week I used the example of a “million dollar spec sale” to discuss a variety of contractual and business concepts important to a screenwriter selling a spec. Today I want to discuss similar concepts related to the other type of work screenwriters do: rewrites and adaptations.

In these situations writers are hired to do one or more drafts of a screenplay. This happens when you are hired to rewrite a spec that you sold. It happens when you are hired to write a screenplay based on an original pitch. You could also be hired to rewrite someone else’s screenplay or adapt a book, play, comic book, etc. From a contractual/business standpoint, all of these deals are pretty similar.

These are all “work-for-hire” deals. This is an important legal term that means the person hiring the writer owns the copyright of the resulting screenplay, not the writer. This can create an odd situation when a producer or studio hires you to rewrite a script that they optioned from you, and then fails to pick up the option (see last post for an explanation of options). In this case, the copyright of the script they optioned stays with you. But who owns the rewrite?

The answer is they do, but since they don’t own the underlying material, they can’t do anything with it. You can’t do anything with it either – you don’t own the copyright for the revisions (known as a “derivative work” in copyright lingo). If you added a clever line of dialogue in that revision, you can’t use it if someone else buys the original script. The unusable rewritten draft is often called a “sterile draft.”

There are two big categories of work-for-hire screenwriting deals: union and non-union. The screenwriters’ union is the Writer’s Guild of America (WGA). It’s actually two unions, WGA west and WGA east, but they negotiate the Minimum Basic Agreement (MBA) that covers screenwriters together. And they mostly work together – mostly. Which one you become a member of depends on which side of the Mississippi you live on.

The advantage of working under a WGA deal is you get the contract language in the MBA automatically applied to your contract. This guarantees you such important things as a defined credit process and residuals. If you work non-union, your attorney will have to negotiate all of that stuff themselves. They probably won’t get as good a deal as the WGA provides. And it will be up to you or your attorney or your reps to enforce your contract. If you work under a WGA contract, the Guild will help enforce it. You don’t want to be responsible for collecting the residuals the studio owes you. Note that once you become a member of the WGA, you aren’t allowed to work non-union.

Non-union deals can be whatever you negotiate, so I can’t really describe them. I’ll discuss how a typical WGA deal works and some of the concepts will apply to non-union work.

The standard work-for-hire contract used to consist of four “steps,” or pieces of writing that the writer would deliver. There would be a treatment, first draft, second draft and polish. If it was a rewrite, the treatment step may have been removed – but sometimes the producers would still want a treatment if the proposed changes were big enough.

Different producers and studios prefer different treatment lengths and formats. It’s best to discuss what they’re expecting before you write it. A draft is what it sounds like – you write a draft or do a revision of the previous draft. A polish is a smaller revision, tweaking dialogue or altering the way scenes play out, but is not supposed to involve big structural changes. Occasionally, though, the difference between a polish and a draft would get fuzzy.

There was also a thing known as a “producer’s pass” or “courtesy pass.” This was when a writer would finish a draft and give it to the producer before officially turning it into the studio. The producer would make some suggestions and the writer would tweak the draft before delivering it. The expectation was that the changes would not take more than a day or so to do. Technically this was against WGA rules, but because it wasn’t particularly onerous on the writer and generally helped the script creatively, everybody looked the other way.

Unfortunately there has been a trend lately to one-step deals. These are deals that only hire the writer for a single draft (or maybe treatment and draft). This is a bad trend for several reasons. First, it takes away the natural collaboration that resulted from a multi-step process. Now there’s pressure on the writer not to show anybody any work until it’s nearly perfect out of fear of getting replaced.

Worse, producers now often abuse the producer’s pass idea to get the writer to do multiple drafts without additional payment. The threat is: if you won’t do another draft for free, they’ll be forced to go hire another writer (ignoring the fact that you won’t get paid either way). It sucks and the WGA is trying hard to end the practice.

When you are hired under a step deal, you are usually paid in installments. The WGA requires that you be paid upon delivery of each step – treatment, first draft, etc. Often payment is also split so you get a portion upon commencement of the draft, and a portion upon delivery.

Or at least that’s the theory. Often in the business writers begin work with only a “deal memo” spelling out the important points of a contract to be finalized later. The actual negotiation of the details drags out for months. But everybody wants to move the project forward so you begin work. However when you ask about your commencement money, you’re informed that the studio can’t pay it until there’s a fully executed contract. Personally I make it a point not to deliver any writing until I receive my commencement money. Some writers will finish all their work and turn it in and still not have been paid for commencement.

If you’d like to look at the MBA (warning – it’s REALLY long) or the schedule of minimum payments, you can find them at the WGA website. Oh, and don’t forget that everything I said last time about paying commissions, union dues and taxes applies to work-for-hire contracts as well.

And always consult an attorney before signing a contract for writing services.